Opinion

James v. Brown

  • 629 S.W.2d 781
  • 1981 Tex. App. LEXIS 4699
Court
Court of Appeals of Texas
Filed
Dec 21, 1981
Status
Published
Author
Robertson
On the bench
Carver, Robertson
Cited by
1 cases
Authority
More cited than 20.8%

The opinion

TED Z. ROBERTSON, Justice,

dissenting.

I dissent because a genuine issue of material fact exists with respect to appellant’s cause of action for medical malpractice. I would reverse the summary judgment and remand the case for trial.

Initially, I would hold that Texas Mental Health Code, Tex.Rev.Civ.Stat.Ann. arts. 5547-1 et seq. (Vernon’s 1958) and (Vernon’s Supp. 1980-1981) imposes a relationship of patient and doctor upon persons such as appellant and appellee. See Tex.Rev.Civ.Stat.Ann. art. 5547—4(j) and (d) (Vernon Supp. 1980-1981). Since the relationship of patient and doctor is a matter of law in a case such as the present case, it was not necessary for appellant to plead the existence of the relationship. Tex.R.Civ.P. 45; Wright v. McKenney, 34 Tex. 568 (1870-71); Mussina v. Goldthwaite, 34 Tex. 126 (1870-71); Milburn v. Walker, 11 Tex. 329 (1854). Appellant’s pleading sufficiently alleged the facts which as matter of law gave rise to the relationship of patient and doctor.

Furthermore, I do not agree with the majority’s holding that there can be no remedy under the Texas Mental Health Code for malpractice occurring as an incident of proceedings under the Code. Article 5547-18 (Vernon’s 1958), entitled Liability, relieves from liability persons acting without negligence pursuant to the Mental Health Code. Such a provision is unnecessary if any act or omission, whether negligent or not, is absolutely privileged because it occurred in the course of proceedings *786 under the Mental Health Code. Section 3.01(2) of the Code Construction Act, Tex. Rev.Civ.Stat.Ann. art. 5429b-2 (Vernon Supp. 1980-1981) states that in enacting a statute it is presumed that the entire statute is intended to be effective. Although the Code Construction Act does not control the interpretation of Tex.Rev.Civ.Stat.Ann. art. 5547-18 (Vernon 1958) because the article was adopted by the 55th legislature rather than the 60th or a subsequent legislature, the provisions of the Code Construction Act are instructive. Indeed, even without the guidance of the Code Construction Act, the legislature cannot be presumed to have done a vain thing in the enactment of a statute. “A construction should not be adopted, if it can be avoided, that will render any part of the act inoperative, negatory or superfluous.” Orsinger v. Schoenfeld, 269 S.W.2d 561, 564 (Tex.Civ.App.—San Antonio 1954, writ ref’d n.r.e.); accord, Spence v. Fenchler, 107 Tex. 443 , 180 S.W. 597 (1915). Additionally, it is a settled rule that the express mention or enumeration of one person, thing, consequence, or class is equivalent to an express exclusion of all others. State v. Mauritz— Wells Co., 141 Tex. 634 , 175 S.W.2d 238 (1943). By expressly stating that persons acting without negligence pursuant to the Mental Health Code were free from all liability, the legislature excluded persons acting negligently from the immunity afforded by the Code.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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